PAUL J. BANACH VS. ALEX TARAKANOV(L-6238-13, BERGEN COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
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          Although it is posted on the internet this opinion is binding only on the
            parties in the case and its use in other cases is limited. R.1:36-3.
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-5505-14T1
    
    PAUL J. BANACH and APRIL
    BANACH,
    
            Plaintiffs-Appellants,
    
    v.
    
    ALEX TARAKANOV and ELENA
    TARAKANOV,
    
            Defendants,
    
    and
    
    NEW JERSEY MANUFACTURERS
    INSURANCE COMPANY,
    
         Defendant-Respondent.
    ——————————————————————————————————
    
                  Argued May 18, 2017 – Decided September 12, 2017
    
                  Before Judges Hoffman, O'Connor and Whipple.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Bergen County, Docket No. L-
                  6238-13.
    
                  Barry D. Epstein argued the cause for
                  appellants   (The  Epstein   Law  Firm,   PA,
                  attorneys; Mr. Epstein, of counsel and on the
                  brief; Michael A. Rabasca, on the brief).
                David T. Robertson argued the cause for
                respondent (Harwood Lloyd, LLC, attorneys; Mr.
                Robertson, of counsel and on the brief).
    
    PER CURIAM
    
          Plaintiffs Paul and April Banach1 filed suit against defendant
    
    New Jersey Manufacturers Insurance Company (NJM) asserting claims
    
    of negligence, gross negligence, and willful misconduct relating
    
    to   inadequate   underinsured   motorist    (UIM)2    coverage   in   their
    
    commercial automobile insurance policy.          Plaintiffs now appeal
    
    from two Law Division orders: the first denied their motion to
    
    amend their complaint, and the second granted NJM's motion for
    
    summary judgment, dismissing their complaint.
    
          In denying plaintiffs' motion to amend their complaint, the
    
    Law Division concluded the "purported amendment . . . would be
    
    futile" and also "prejudicial" to NJM. From our review, the record
    
    does not support these conclusions.          We therefore reverse the
    
    order denying plaintiffs leave to amend their complaint.
    
          In   considering   NJM's   summary    judgment    motion,   the   Law
    
    Division refused to consider the report of plaintiffs' expert,
    
    concluding it constituted a net opinion.       Plaintiffs' expert based
    
    
    1
        For ease of reference, we refer to plaintiffs by their first
    names. We do not intend any disrespect by this informality.
    2
        According to NJM's Commercial Auto Insurance Buyer's Guide,
    uninsured motorist (UM) and UIM coverages are "sold together."
    Frequently, the combined coverage is referred to as UM/UIM
    coverage.
                               2                            A-5505-14T1
    his   opinions   upon   his    extensive       experience      in   New    Jersey's
    
    insurance market and its regulation, after reviewing all relevant
    
    parts of the record.     Following our review of the expert's report,
    
    we reject the trial court's conclusion that plaintiff's expert
    
    offered   a   net   opinion.          The    judge   further    concluded       that
    
    plaintiffs' claim against NJM is barred by N.J.S.A. 17:28-1.9.
    
    Because the record reveals factual questions whether NJM satisfied
    
    the criteria to benefit from the immunity provided by this statute,
    
    we reverse the trial court's grant of summary judgment and remand
    
    for trial.
    
                                            I.
    
          Viewing the record in the light most favorable to plaintiffs
    
    as the non-moving parties, see Angland v. Mountain Creek Resort,
    
    Inc., 
    213 N.J. 573
    , 577 (2013), we discern the following facts.
    
    On May 27, 2013, Paul sustained serious bodily injuries while
    
    operating his motorcycle in Paramus.               The accident occurred when
    
    defendant Elena Tarakanov, while driving a car owned by her
    
    husband, defendant Alex Tarakanov, made an improper left-hand turn
    
    in front of Paul.       IFA Insurance Company insured the Tarakanov
    
    vehicle, providing $100,000 of bodily injury liability coverage.
    
    Plaintiffs    ultimately      settled       with   the   Tarakanovs       for   their
    
    $100,000 policy limit.        Foremost Insurance Company insured Paul's
    
    
    
                                      3                                         A-5505-14T1
    motorcycle;   however,      the    policy     included   only   liability   and
    
    collision coverage.
    
          On January 21, 2000, NJM issued a business auto policy to
    
    plaintiffs' newly formed company, Paul Banach Construction LLC
    
    (Banach Construction).       The policy provided $500,000 of liability
    
    coverage but only $100,000 of UM/UIM coverage.
    
          April handled the insurance for Banach Construction.             Before
    
    purchasing the policy from NJM, which does not have brokers or
    
    agents,   April   spoke     with   one   of    its   representatives   on   the
    
    telephone.    According to April, "I asked them to just let me know
    
    what I had to have.       I went by their guidance[,]"          and "[I] asked
    
    them what would be my benefit to have."                  Referring to NJM's
    
    coverage selection form3 (CSF), April said,
    
               Basically they went over it and told me just
               to sign my name and fax it[,] and they would
               do the rest.
    
                      . . . .
    
               After . . . a discussion[,] they advised me
               that they would put what I needed.
    
                      . . . .
    
               I didn't really understand any                  of the
               document[,] I'm embarrassed to say.            . . . I
               wanted somebody to guide me[,] and I           was with
               them since I was 17. I wanted them             to guide
               me. I guess I was wrong.
    
    
    
    3
        The form is labeled, "COMMERCIAL AUTO COVERAGE SELECTION FORM."
                                 4                              A-5505-14T1
            At the end of the phone call, April followed the instructions
    
    she received and signed the CSF in blank, before faxing the form
    
    to NJM.     At her deposition, she confirmed the coverage selections
    
    on the form "aren't my markings[,]" expressing certainty because
    
    "I don't do this x swirly thing."
    
            The completed CSF selected $500,000 for liability coverage
    
    but only $100,000 for UM/UIM coverage.      The form also reflected
    
    selection of the "No Limitation on Lawsuit Option," above a
    
    paragraph that stated this selection will result in a higher
    
    liability premium.     Thereafter, NJM issued a policy that included
    
    these coverages.
    
            According to April, "in the years following[,] I would call,
    
    ask if there were any changes I should know about, anything that
    
    I should choose differently[,] and they would tell me to just
    
    write no changes across the top[,] which is what I would always
    
    do."4    In January 2011, April contacted NJM to add a vehicle to
    
    their policy and spoke with NJM representative Ryan Ennis.5     After
    
    
    
    
    4
         The record indicates recordings of at least some of these
    conversations are still available; however, the record only
    contains the transcript of a January 6, 2011 conversation.
    5
        At his deposition, Stanley Brzezinski, NJM's commercial lines
    underwriting manager, described Ennis as a "call center rep." All
    NJM call center reps hold a New Jersey insurance producer's
    license.
                                5                              A-5505-14T1
    obtaining the information regarding the additional vehicle, Ennis
    
    initiated the following colloquy with April:
    
             Q:   Alright. I will put that on there for
                  you.   Now do you have your own . . .
                  personal auto policy or is this your only
                  policy in the household?
    
             A:   This is it.
    
             Q:   This is it.    OK . . . because what I
                  would suggest adding, since you don't
                  currently have a personal auto policy in
                  your household . . . there's no coverage
                  for yourself or . . . for your husband
                  for . . . personal injury protection in
                  case you were to . . . borrow anyone's
                  vehicle or be a passenger in someone
                  else's vehicle.
    
             A:   Hmm.
    
             Q:   What we can offer is an endorsement to
                  the policy which adds that coverage . . .
                  'cause that way you would have . . .
                  protection for yourself, personal injury
                  for no matter where you're at . . .
                  whoever's vehicle you're in, whether it
                  be   a    passenger   or   borrowing    a
                  vehicle, . . . you would have that
                  coverage.
    
             Q:   How much is that?
    
             A:   Well, it depends on the . . . options
                  that you choose[;] it could be as low as
                  about $100 or up to about $200 depending
                  on different options that you . . . .
    
             Q:   A month?
    
             A:   Uh, no, that's per year.
    
             Q:   Oh.
    
                                6                             A-5505-14T1
             A:   It's not, not much money, you know,
                  more[,] and it does give you . . . a
                  benefit that way since you don't have a
                  personal policy, it protects you, you
                  know, for personal injury . . . as far
                  as it can go.
    
             Q:   Um. OK. Yeah, I definitely need to look
                  into that, well, especially with that
                  cost, I mean, it's really not much of a
                  difference . . .
    
             A:   Yeah.
    
             Q:   . . . broken down.
    
                  . . . .
    
             A:   It's taking me so long to fill out this
                  form. There's so many questions.
    
             Q:   I know . . .       I know.
    
             A:   Because I am a generally like a
                  person . . . who doesn't, isn't an
                  insurance broker or anything, it's really
                  hard to understand most of it.
    
             Q:   Yeah . . . yeah. Well, I mean, what I
                  can do with you here, if you have a
                  minute, I can . . . go over the price of
                  what the difference would be for . . .
                  selecting      the     options      and,
                  recommend . . . what you would want from
                  these.
    
        Ennis proceeded to "suggest" that April increase the medical
    
    expense limit on plaintiffs' policy from $250,000 to $1 million,
    
    with a $250 deductible (the minimum deductible permitted by law).
    
    April accepted his suggestion.        Ennis then agreed to fax the
    
    coverage selection form to April, telling her "you need to check
    
                                 7                             A-5505-14T1
    off everything that we just discussed.           So what I'll do is I'll
    
    put an arrow next to . . . the options that I just chose for you."
    
    April complied, checking off the coverages selected by Ennis and
    
    faxing the form back to him.
    
         According to Brzezinski, from the time defendant issued its
    
    first policy to plaintiffs in 2000, to the time of Paul's accident,
    
    NJM had a "practice and procedure" of including "a coverage
    
    selection form (CSF) and a Buyer's Guide," as required by law,
    
    with every application for a business auto insurance policy, and
    
    each and every renewal.     Although Brzezinski said NJM did not have
    
    a practice or policy of aligning an insured's liability coverage
    
    with the insured's UM/UIM coverage, he admitted he did not know
    
    the industry standard outside of NJM.      When asked if he was "aware
    
    of any statistic at NJM of the percentage of policies that do not
    
    match liability with UM[-]UIM," he responded, "It's low."
    
         Additionally, Brzezinski was asked about April's testimony,
    
    "that she was told to sign [the CSF] and send it back and the
    
    representative would fill in the coverage and place the check
    
    marks for the applicable coverage."             Plaintiff's counsel then
    
    inquired, "Is that the way it's supposed to go?           Is that proper
    
    procedure?"      Brzezinski responded, "It's backward."
    
         In August 2013, plaintiffs filed their complaint seeking
    
    damages   from    Tarakanov,   alleging   she    negligently   caused   the
    
                                    8                                 A-5505-14T1
    accident.     Thereafter,         plaintiffs    filed    an      amended   complaint
    
    adding NJM as a defendant, alleging NJM "seriously and flagrantly
    
    failed   to   meet    its     obligations      to    plaintiff,     including        its
    
    obligation to properly advise plaintiff of coverages, the effect
    
    of   coverages,       the      inadequacy       of     coverages,       has       given
    
    misinformation       and    has   otherwise     failed      to   properly       furnish
    
    information of proper insurance coverages in its dealing with
    
    plaintiff."    Plaintiffs further alleged NJM's conduct "represents
    
    negligence,   gross        negligence,   willful      and    wanton   conduct        and
    
    malice as a matter of law."
    
         After    receiving       discovery,    plaintiff        obtained      an    expert
    
    report from Armando M. Castellini.                  According to his certified
    
    biography, Castellini has been a technical consultant and expert
    
    witness to attorneys in insurance matters and litigation involving
    
    approximately 1700 cases in twenty-four states.6
    
    
    6
        Castellini's biography further states he previously served in
    various positions within the insurance industry, including:
    president of the Independent Insurance Agents of New Jersey; the
    New Jersey Insurance Commissioner's agent representative to the
    governing committee of the Automobile Insurance Plan; member of
    the committees involved in the drafting, enactment, and
    implementation of the New Jersey No-Fault Law; vice-president of
    the Insurance Broker's Association of New Jersey; member of the
    New Jersey Department of Insurance Task Force on Banking and
    Insurance; Member of the New Jersey Automobile Full Insurance
    Underwriting Association's Rules and Forms Committee; member of
    the New Jersey Department of Insurance Commissioner's Producer
    Advisory Committee; director of the New Jersey Association of
    Insurance Licensing Schools.
    
                                        9                                           A-5505-14T1
          Before issuing his report, Castellini reviewed voluminous
    
    records,   including    "[a]pproximately        700   pages       of     documents
    
    produced   by    [defendant]    consisting   of   [c]overage           [s]election
    
    [f]orms and policy declaration pages."
    
          According to Castellini,
    
               Because insurance companies believed they
               could   not    "under-write"   the   exposures
               presented by UM and UIM coverages, they
               generally tended to be adverse to selling the
               coverages, and the statutory change that made
               it the insured's option to purchase increased
               limits of UM/UIM when prior to this it had
               been the insurer's option to sell increase[d]
               limits was not well received by most insurance
               companies. An . . . example of this reaction
               is found in [NJM's memo from around January
               1974].     These memos from management to
               personnel of carriers were clearly intended
               to avoid the application of the statutory
               change, and a direction to not "sell"
               increased limits of UM/UIM – unless an insured
               was wise enough to understand the coverage,
               its availability, and the serious nature of
               the exposure they faced absent the coverages.
    
          Castellini attached a copy of the January 1974 NJM memo to
    
    his   report.7      Addressed    to   "SALES,     CLAIMS      &    UNDERWRITING
    
    PERSONNEL," the memo stated, in relevant part:
    
               . . . Insureds may now purchase high limits
               of coverage to protect themselves more fully
               against damage or injury by an uninsured
               motorist and by so doing, automatically
               receive an extension of their coverage to
    
    
    7
       At his deposition, Brzezinski stated the individuals listed on
    the memo "were attorneys with [NJM] and the president of the
    company."
                                10                            A-5505-14T1
                include     Under-insured     Motorist      Coverage    as
                well.
    
                       . . . .
    
                At present[,] it is not our intent to actively
                market this new form of coverage. You
                nevertheless should be aware of its existence
                and the fact that on an insured's request, we
                will provide it.
    
          Castellini      cited   "the   introduction        of   the    Basic     Auto
    
    Policy . . . and the Special Auto Policy" as explaining "why the
    
    very large majority [of] Insurance Producers have developed the
    
    practice of recommending high limits of liability coverage so that
    
    their clients may then procure up to those high limits for their
    
    protection    against    [u]ninsured      and    [u]nderinsured      drivers      or
    
    vehicles."
    
          Castellini      further    opined,        "[I]n    today[']s       insurance
    
    environment in New Jersey, it is very rare to find a [p]ersonal
    
    or [c]ommercial [a]uto policy that does not have UM/UIM limits
    
    that match the policy's liability limits – and when that occurs,
    
    it   is   deemed   to    be   violative    of     [industry]    standards       and
    
    practices."    He therefore concluded, NJM
    
                failed to conform to the generally accepted
                standards and practices relative to the
                matching of an insured's UM/UIM limits to the
                policy's liability limits; arbitrarily and
                capriciously established is own internal
                processes and procedures with regard to UM/UIM
                sales and limits; and did so intentionally and
                willfully; in violation of the statute as well
                as the industry practice.
                                  11                                           A-5505-14T1
    He further noted, "A very minimal increase in the UM/UIM premium
    
    would    have    been   charged   for    the   increase    from       $100,000    to
    
    $500,000."
    
           In December 2014, NJM filed a motion for summary judgment.
    
    The trial court heard oral argument on January 23, 2015, and
    
    reserved decision.
    
           Plaintiffs then filed their motion to amend their complaint,
    
    seeking to include an allegation that NJM violated the New Jersey
    
    Consumer Fraud Act8 (CFA).            Following oral argument on May 29,
    
    2015, a different judge denied plaintiffs' motion.                He first noted
    
    that in Myska v. New Jersey Manufacturers Insurance Company, 440
    
    N.J.    Super.   458,   485   (App.     Div.   2015),   appeal    dismissed       as
    
    improvidently granted, 
    224 N.J. 523
    , 524 (2016), this court held,
    
    "[T]he CFA is not appropriate where a regulatory scheme deals
    
    specifically,      concretely,    and     pervasively     with    a    particular
    
    activity implying a legislative intent not to subject parties to
    
    multiple regulations that as applied will work at cross purposes."
    
    He then concluded,
    
                We now have a regulatory system where a party
                is entitled to purchase what they call
                insurance which is a basic policy which gives
                people recovery for property damage of $5,000
                and medical bills for $10,000 and provides no
                liability insurance.      People buy those
                policies.   They get sued.   They think they
    
    8
        N.J.S.A. 56:8-1 to -206.
                                      12                                       A-5505-14T1
               have insurance, but they have no liability
               insurance. . . .
    
                    The fact that . . . there's no contest
               and no dispute that NJM offered the option of
               having the insured purchase UM/UIM coverage
               to equal the amount purchased by the insured
               for liability coverage.    There's no dispute
               as to that.     That was the option of the
               consumer, and the consumer chose not to do it.
    
                     . . . .
    
               Based   upon  that   highly   regulatory   and
               statutory scheme, the purported amendment to
               include the claim for a violation of the [CFA]
               would be futile, and it would certainly be
               prejudicial to this defendant who has been
               litigating this case without that allegation
               presented before [it] until two weeks before
               trial.
    
         On   June   18,   2015,   the   first   judge   issued    his   reserved
    
    decision, granting NJM's summary judgment motion and dismissing
    
    all claims against NJM with prejudice.          The judge set forth his
    
    reasons in a thirty-eight-page written opinion.               He first noted
    
    that plaintiffs were not entitled to assert a UIM claim because
    
    Tarakanov had $100,000 of liability coverage, and plaintiffs had
    
    the same amount of UIM coverage.       He then concluded, "Even if . . .
    
    a mistake could be found in this case, the [c]ourt cannot find
    
    that any fraudulent or unconscionable conduct has taken place to
    
    merit reformation."
    
         The judge further ruled that plaintiffs' "expert's opinion
    
    in this case will play no part in the discussion of whether
    
                                    13                                    A-5505-14T1
    [plaintiffs] are entitled to reformation of the insurance policy
    
    or damages, because [the expert] has rendered an inadmissible net
    
    opinion."     The judge further found that NJM was "entitled to
    
    immunity under N.J.S.A. 17:28-1.9," providing it with "a shield
    
    against both claims for reformation and damages." He therefore
    
    granted NJM's summary judgment motion and dismissed plaintiffs'
    
    complaint.    This appeal followed.
    
                                            II.
    
         We first address the Law Division order denying plaintiffs'
    
    motion to amend their complaint to assert a CFA claim. Our Supreme
    
    Court has "made clear that 'Rule 4:9-1 requires that motions for
    
    leave to amend be granted liberally' and that 'the granting of a
    
    motion to file an amended complaint always rests in the court's
    
    sound discretion.'"      Notte v. Merchs. Mut. Ins. Co., 
    185 N.J. 490
    ,
    
    501 (2006) (quoting Kernan v. One Washington Park Urban Renewal
    
    Assocs.,    
    154 N.J. 437
    ,    456-57       (1998)).   "That   exercise    of
    
    discretion requires a two-step process: whether the non-moving
    
    party will be prejudiced, and whether granting the amendment would
    
    nonetheless be futile."         Ibid.
    
         A plaintiff may pursue a CFA claim "against an insurance
    
    company for 'fraudulent, deceptive or other similar kind of selling
    
    or advertising practices,' [but] there are limits on the statute's
    
    application."      Myska, supra, 440 N.J. Super. at 485 (quoting
    
                                      14                                  A-5505-14T1
    Daaleman v. Elizabethtown Gas Co., 
    77 N.J. 267
    , 271 (1978)).        "To
    
    prevail on a CFA claim, a plaintiff must establish three elements:
    
    '1) unlawful conduct by defendant; 2) an ascertainable loss by
    
    plaintiff; and 3) a causal relationship between the unlawful
    
    conduct and the ascertainable loss.'"      Id. at 484 (quoting Zaman
    
    v. Felton, 
    219 N.J. 199
    , 222 (2014)).     Under the CFA, an "unlawful
    
    practice" includes
    
              any   unconscionable   commercial   practice,
              deception, fraud, false pretense, false
              promise, misrepresentation, or the knowing,
              concealment, suppression, or omission of any
              material fact with intent that others rely
              upon   such   concealment,   suppression   or
              omission, in connection with the sale or
              advertisement of any merchandise or real
              estate, or with the subsequent performance of
              such person as aforesaid, whether or not any
              person has in fact been misled, deceived or
              damaged thereby.
    
              [N.J.S.A. 56:8-2.]
    
         In   Myska   we   further    noted   that,   although   "the   CFA
    
    'encompass[es] the sale of insurance policies as goods and services
    
    that are marketed to consumers,' it was not intended as a vehicle
    
    to recover damages for an insurance company's refusal to pay
    
    benefits." Myska, supra, 440 N.J. Super. at 485 (quoting Lemelledo
    
    v. Benefit Mgmt. Corp., 
    150 N.J. 255
    , 270 (1997)). We nevertheless
    
    agreed that "Lemelledo authorizes pursuit of a private right of
    
    action against an insurance company for 'fraudulent, deceptive or
    
    
                                 15                                A-5505-14T1
    other similar kind of selling or advertising practices.'"                 Ibid.
    
    (quoting Daaleman, supra, 77 N.J. at 271).
    
           Here, plaintiffs do not seek to recover damages for an alleged
    
    refusal to pay benefits; instead, plaintiffs seek reformation of
    
    their NJM policy to match their UM/UIM coverage with their $500,000
    
    of liability coverage.           In their initial complaint against NJM,
    
    plaintiffs alleged NJM's conduct represents "gross negligence,
    
    willful and wanton conduct and malice as a matter of law."                These
    
    allegations not only loosely track the exception to the immunity
    
    statute, N.J.S.A. 17:28-1.9, they also allege conduct that would
    
    violate    the    CFA's   broad    proscription   "of     any    unconscionable
    
    commercial practice, deception . . . , misrepresentation, or the
    
    knowing, concealment, suppression, or omission of any material
    
    fact     with    intent   that    others   rely   upon    such    concealment,
    
    suppression or omission."          N.J.S.A. 56:8-2.
    
           Based upon our review of the record, including the admitted
    
    "backward" procedure followed in the initiation and amendment of
    
    plaintiffs' policy, and the opinions of plaintiff's expert, we
    
    reject    the    conclusion      plaintiff's   proposed    amended   complaint
    
    "would be futile."        Additionally, we discern no prejudice to NJM
    
    by the proposed amendment since the CFA claim is based on the same
    
    underlying facts and events set forth in the original pleading.
    
    We further conclude NJM has no cause to complain of the late
    
                                        16                                  A-5505-14T1
    assertion of claims grounded on the same conduct already alleged
    
    in the complaint.    We hold that no cognizable prejudice will inure
    
    to NJM by the amendment sought by plaintiffs. We therefore reverse
    
    the May 29, 2015 order denying plaintiffs' motion to file an
    
    amended complaint.
    
                                           III.
    
          We next address the rejection of the report of plaintiffs'
    
    expert as a net opinion.       The admissibility of expert testimony
    
    is committed to the sound discretion of the trial court.               Townsend
    
    v. Pierre, 
    221 N.J. 36
    , 52 (2015).            A trial court's grant or denial
    
    of a motion to preclude expert testimony is entitled to deference
    
    on appellate review.      Ibid.     Our Supreme Court has instructed us
    
    to "apply [a] deferential approach to a trial court's decision to
    
    admit expert testimony, reviewing it against an abuse of discretion
    
    standard."    Id. at 53 (alteration in original) (quoting Pomerantz
    
    Paper Corp. v. New Cmty. Corp., 
    207 N.J. 344
    , 371-72 (2011)).
    
          N.J.R.E. 702 and 703 frame our analysis for determining the
    
    admissibility of expert testimony.             N.J.R.E. 702 identifies when
    
    expert testimony is permissible and requires the experts to be
    
    qualified in their respective fields.             N.J.R.E. 703 addresses the
    
    foundation for expert testimony. Expert opinions must "be grounded
    
    in   'facts   or   data   derived      from     (1)   the   expert's   personal
    
    observations, or (2) evidence admitted at the trial, or (3) data
    
                                      17                                    A-5505-14T1
    relied upon by the expert which is not necessarily admissible in
    
    evidence but which is the type of data normally relied upon by
    
    experts.'"    Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cty.
    
    of Essex, 
    196 N.J. 569
    , 583 (2008)).
    
         "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .
    
    which     forbids   the   admission   into   evidence     of   an    expert's
    
    conclusions that are not supported by factual evidence or other
    
    data.'"     Id. at 53-54 (alteration in original) (quoting Polzo,
    
    supra, 196 N.J. at 583).        Therefore, an expert is required to
    
    "'give the why and wherefore' that supports the opinion, 'rather
    
    than a mere conclusion.'"       Id. at 54 (quoting Borough of Saddle
    
    River v. 66 E. Allendale, LLC, 
    216 N.J. 115
    , 144 (2013)).             The net
    
    opinion rule directs "that experts 'be able to identify the factual
    
    bases   for   their   conclusions,    explain   their    methodology,      and
    
    demonstrate that both the factual bases and the methodology are
    
    reliable.'"     Id. at 55 (quoting Landrigan v. Celotex Corp., 
    127 N.J. 404
    , 417 (1992)).        In short, the net opinion rule is "a
    
    prohibition against speculative testimony."             Harte v. Hand, 
    433 N.J. Super. 457
    , 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer,
    
    
    301 N.J. Super. 563
    , 580 (App. Div. 1997), certif. denied, 
    154 N.J. 607
     (1998)).
    
         Plaintiffs argue the Law Division abused its discretion when
    
    it rejected Castellini's report as a net opinion.                   We agree.
    
                                    18                                    A-5505-14T1
    Castellini    based    his   report        on   his    extensive     background,
    
    education, and experience, along with his review of the significant
    
    record in this case.         He has been actively involved in the
    
    insurance business and its regulation for many years, dating back
    
    to the enactment of No Fault Insurance in New Jersey.                He properly
    
    based   his   conclusions    on    these     facts    and   experiences.      See
    
    Townsend, supra, 221 N.J. at 53 (quoting Polzo, supra, 196 N.J.
    
    at 583).
    
                                           IV.
    
         Our review of a ruling on summary judgment is de novo.
    
    Parsons v. Mullica Twp. Bd. of Educ., 
    440 N.J. Super. 79
    , 83 (App.
    
    Div. 2015).    We apply the same legal standard as the trial court.
    
    Ibid.      Summary   judgment     is   appropriate     when   "the   pleadings,
    
    depositions, answers to interrogatories and admissions on file,
    
    together with the affidavits, if any, show that there is no genuine
    
    issue as to any material fact challenged and that the moving party
    
    is entitled to a judgment or order as a matter of law."                 R. 4:46-
    
    2(c).    When determining whether the record contains a genuine
    
    issue of material fact, the court must consider "whether the
    
    competent evidential materials presented, when viewed in the light
    
    most favorable to the non-moving party, are sufficient to permit
    
    a rational factfinder to resolve the alleged disputed issue in
    
    
    
                                      19                                     A-5505-14T1
    favor of the non-moving party."        Brill v. Guardian Life Ins. Co.
    
    of Am., 
    142 N.J. 520
    , 540 (1995).
    
         NJM   argues   the   Law   Division      properly    granted    summary
    
    judgment, claiming entitlement to immunity, pursuant to N.J.S.A.
    
    17:28-1.9, which provides, in pertinent part:
    
               a. [N]o . . . insurer . . . shall be liable
               in an action for damages on account of the
               election of a given level of motor vehicle
               insurance coverage by a named insured as long
               as those limits provide at least the minimum
               coverage required by law or on account of a
               named insured not electing to purchase [UIM]
               coverage, collision coverage or comprehensive
               coverage.   Nothing in this section shall be
               deemed to grant immunity to any person causing
               damage as the result of [its] willful, wanton
               or grossly negligent act of commission or
               omission.
    
               b. The coverage selection form required
               pursuant to [N.J.S.A. 39:6A-23] shall contain
               an acknowledgement by the named insured that
               the limits available to him for [UM] coverage
               and [UIM] coverage have been explained to him
               and a statement that no . . . insurer . . .
               shall be liable in an action for damages on
               account of the election of a given level of
               motor vehicle insurance coverage by a named
               insured as long as those limits provide at
               least the minimum coverage required by law or
               on account of a named insured not electing to
               purchase [UIM] coverage, collision coverage or
               comprehensive coverage, except for that person
               causing damage as the result of [its] willful,
               wanton or grossly negligent act of commission
               or omission.
    
    N.J.S.A.   17:28-1.9   was   enacted    "to    abrogate    prior    judicial
    
    decisions holding insurers, agents, and brokers liable for failing
    
                                    20                                   A-5505-14T1
    to   advise    their    customers    of   the   availability   of   additional
    
    [UM/UIM] coverage" and to quell the "explosion of litigation by
    
    providing blanket immunity except in cases of willful, wanton, or
    
    gross negligence." Strube v. Travelers Indem. Co., 
    277 N.J. Super. 236
    , 237, 242 (App. Div. 1994), aff'd o.b., 
    142 N.J. 570
     (1995).
    
          Immunity applies as long as the insurer establishes the
    
    following:
    
                  (1) the named insured's coverage limits were
                  at least the minimum coverage required by law;
    
                  (2) the named insured's alleged damages were
                  not caused by a "willful, wanton or grossly
                  negligent act of commission or omission;" and
    
                  (3) the carrier complied with the coverage
                  selection requirements of N.J.S.A. 17:28-
                  1.9(b).
    
                  [Baldassano v. High Point Ins. Co., 396 N.J.
                  Super. 448, 453-54 (App. Div. 2007).]
    
    In   addition,     an    insurer     must   have    obtained   an    insured's
    
    acknowledgement that the available UM/UIM coverage limits were
    
    explained to him, and the insurer will not be liable for the
    
    insured's selection of coverage that was chosen in accordance with
    
    subsection (a) of the immunity statute.            N.J.S.A. 17:28-1.9(b).
    
          If applying for a new policy, the insured must check-off the
    
    options elected on the coverage selection form and then sign and
    
    return the form to the insurer.             N.J.S.A. 39:6A-23(a); N.J.A.C.
    
    11:3-15.7(a).      A completed, executed coverage selection form is
    
                                        21                                 A-5505-14T1
    "prima   facie   evidence   of    the   insured's   knowing   election   or
    
    rejection of any option."        N.J.S.A. 39:6A-23(e).
    
         Significantly, in Avery v. Wysocki, 
    302 N.J. Super. 186
    , 190-
    
    192 (App. Div. 1997), we held:
    
               [T]he insured's completion and execution of
               the coverage selection form is a condition of
               the grant of immunity by subsection a. It is
               plain that the purpose of the immunity is to
               shift   the   responsibility    for   coverage
               selection from the insurer to the insured. It
               is also plain that under the legislative
               scheme, the mechanism by which the insured is
               enabled to make an informed coverage choice
               and thereby to protect himself is the coverage
               selection form mandated by N.J.S.A. 39:6A-23
               . . . . We think it clear that without this
               protection, the grant of the immunity by
               N.J.S.A. 17:28-1.9a would have far harsher
               consequences than the Legislature intended.
               That is to say, the subsection a immunity is
               based on the assumption that the insurer will
               have complied with the dictates of N.J.S.A.
               39:6A-23 by providing the insured with an
               adequate description of available coverages
               and their limits.
    
                     . . . .
    
               We recognize the salutary purposes of the
               immunity. We also appreciate, however, that
               insistence on meticulous compliance with the
               applicable     coverage    selection     form
               requirements is the legislative trade-off, as
               it were, for according the immunity.
    
         In Pizzullo v. New Jersey Manufacturers Insurance Company,
    
    
    196 N.J. 251
     (2008), our Supreme Court addressed the immunity
    
    provision at issue in another UIM coverage case involving NJM.           In
    
    Pizzullo, NJM argued that "because it is a direct-writing insurer
                                22                            A-5505-14T1
    and does not employ brokers or agents, it had no duty to plaintiffs
    
    other     than     to      comply      with      the     statutory     notification
    
    requirements."          Id. at 263 (citing Andriani v. N.J. Mfrs. Ins.
    
    Co., 
    245 N.J. Super. 252
    , 256-57 (App. Div.), certif. denied, 
    126 N.J. 327
       (1991)).         NJM    asserted    "that      its   customer    service
    
    representatives are neither agents nor brokers, because they do
    
    not offer recommendations or advice about insurance needs, give
    
    counsel to the insureds, sell policies or suggest increases or
    
    decreases to coverage."            Ibid.   Notwithstanding "what its customer
    
    service representative said" to the plaintiffs in Pizzullo, NJM
    
    argued that it was "entitled to immunity because it mailed the
    
    plaintiffs       the    Buyer's      Guides   and      Coverage    Selection        Forms
    
    required by the statute."             Ibid.
    
           After reviewing the history of the immunity statute, the
    
    Court flatly rejected the "blanket immunity" advanced by NJM.                         Id.
    
    at 268.       Viewed in its historical context, the Court concluded
    
    "the    Legislature        meant     the   statute      to    confer   immunity       in
    
    circumstances relating to an insured's election of UIM coverage
    
    when the insured attempts to later shift the blame for a decision
    
    to opt for any level of coverage less than the maximum back onto
    
    the insurer."          Ibid.
    
           Because the inadequate UIM coverage in Pizzullo resulted from
    
    inaccurate       responses      the    plaintiff        received     from     the     NJM
    
                                          23                                       A-5505-14T1
    representative,        the   Court     rejected     NJM's     argument     that   the
    
    plaintiff made an "election of . . . coverage," N.J.S.A. 17:28-
    
    1.9(b), that triggered immunity for NJM.                    Pizzullo, supra, 196
    
    N.J. at 269-70.          After concluding the immunity statute did not
    
    apply,   the    Court     reinstated       the   monetary     judgment    previously
    
    entered by the Law Division in favor of the plaintiffs following
    
    trial.   Id. at 274.
    
         Applying the analysis employed by the Court in Pizzullo, we
    
    are satisfied the record here clearly raises factual questions
    
    precluding summary judgment.               Viewed in the light most favorable
    
    to plaintiffs, April never made an election of any coverages to
    
    trigger immunity in favor of NJM; instead, Ennis offered to make
    
    the policy elections, and April accepted his offer.                  Moreover, in
    
    2000, April signed the CSF before any selections were made, a
    
    procedure      which    NJM's   own    underwriting      manager    described       as
    
    "backward."       The statute grants an insurer immunity upon "the
    
    insured's   completion       and     execution     of   the   coverage    selection
    
    form," Avery, supra, 302 N.J. Super. at 190, not the insurer's
    
    "call center rep."           On remand, we expect the trial court will
    
    address, with the benefit of a full trial record, whether NJM's
    
    handling    of    plaintiffs'         policy      resulted     in   the    required
    
    "meticulous compliance with the applicable coverage selection form
    
    requirements."         Id. at 192.
    
                                          24                                     A-5505-14T1
         Of further note, the Court in Pizzullo reaffirmed well-
    
    established principles that we find apply to the unusual factual
    
    circumstances under review:
    
                An insurance company is "expert in its field
                and its varied and complex instruments are
                prepared by it unilaterally whereas the
                assured or prospective assured is a [lay
                person] unversed in insurance provisions and
                practices."   Gibson v. Callaghan, 
    158 N.J. 662
    , 669, (1999) (quoting [Allen v. Metro.
                Life Ins. Co., 
    44 N.J. 294
    , 305 (1965)]).
                Because of the substantial disparity in the
                sophistication of the parties, and because of
                the highly technical nature of insurance
                policies,   we   have   long   "assume[d]   a
                particularly vigilant role in ensuring their
                conformity to public policy and principles of
                fairness."   Id. at 669-70 (quoting Voorhees
                v. Preferred Mut. Ins. Co., 
    128 N.J. 165
    , 175
                (1992)).
    
                [Pizzullo, supra, 196 N.J. at 270.]
    
         The record also contains substantial evidence that supports
    
    the opinion of plaintiffs' expert that NJM arbitrarily established
    
    its own internal processes and procedures regarding the sale of
    
    UM/UIM coverage, contrary to "accepted standards and practices
    
    relative to the matching of an insured's UM/UIM limits to the
    
    policy's liability limits." The record contains no contrary expert
    
    opinions.
    
          In addition, notwithstanding the contention of NJM counsel
    
    at oral argument that "it's NJM's practice not to advise as to
    
    coverages,"    the   record   contains   compelling   evidence   to   the
    
                                   25                                A-5505-14T1
    contrary.     The record clearly reflects that Ennis advised April
    
    regarding the option and the benefit of adding an endorsement to
    
    plaintiffs' commercial auto policy that would provide plaintiffs
    
    with personal injury protection (PIP) coverage, if they were
    
    driving or occupying a non-owned vehicle.           He also recommended
    
    plaintiffs increase the medical expense benefits portion of their
    
    PIP coverage from $250,000 to $1 million.          April accepted these
    
    recommendations and Ennis amended plaintiffs' policy to implement
    
    these important changes.9
    
         Having    identified    two   major   deficiencies   in    plaintiffs'
    
    policy, and having rectified them for plaintiffs, a major issue
    
    that remains is why Ennis failed to identify the deficiency of
    
    plaintiffs' UM/UIM coverage not matching their liability coverage.
    
    One possible explanation, advanced by plaintiffs' expert, is that
    
    NJM maintained a policy, dating back to 1974, to "not . . .
    
    actively     market"   UIM   coverage.       The   record      contains   no
    
    documentation announcing a change in the policy announced in NJM's
    
    1974 memo.
    
         We conclude the record clearly indicates factual questions
    
    precluding summary judgment: first, whether NJM complied with the
    
    
    
    9
       We do not suggest any criticism of the changes Ennis recommended
    and made to plaintiffs' policy. To the contrary, it appears these
    changes reflected wise counsel and resulted in much improved
    coverage for plaintiffs.
                                 26                             A-5505-14T1
    coverage   selection    requirements      of    the   immunity    statute,    and
    
    second, whether NJM caused plaintiffs' damages by a "willful,
    
    wanton   or   grossly   negligent   act    of    commission      or   omission."
    
    N.J.S.A. 17:28-1.9.
    
        Reversed and remanded.      We do not retain jurisdiction.
    
    
    
    
                                   27                                        A-5505-14T1